The defendant in the case was an owner of a network of chemists where customers could use discount coupons to get 10% off, given away and sent by post by another entrepreneur. In the opinion of the Central Office for Combating Unfair Competition who brought in a lawsuit, such conduct is an act of unfair competition consisting in appropriation of someone else’s advertising and taking advantage of its results while simultaneously giving the impression that between the entrepreneurs an agreement has been concluded on validity of discount coupons at their outlets.
However, the Federal Tribunal of Justice [BGH] recognized that an act of unfair competition had not been committed and the defendant’s conduct could not be qualified as an attempt to take over clientele of the competitor. Because holders of discount coupons are not customers of any of the chemists until they decide to make a purchase at one of them and to use a coupon for the purpose.
Moreover, it was established that the defendant placed advertisements for a possibility of using a coupon on banners in his own shops which proves that he addressed the advertising to his own customers and not those of the competitor. Also he was not in any way preventing customers from using the coupons in shops of the competition where they could equally take advantage of the discount granted.
An important point was also the finding by the BGH that the defendant’s advertising had not misled customers first of all because it directly and clearly indicated that it was about redemption of coupons at his outlets while the defendant did not try to use the competitor’s name as his own.
- Judgment of the Tribunal of Justice of 23rd June 2016, file reference I ZR 137/15